5.  The applicant was born on 19 June 1956 and lives in Tryškiai.
6.  He joined the Lithuanian army during the 1990s. In 2003 and 2004 respectively the Commander of the Armed Forces awarded him the “Exemplary Service” and “Merit” medals.
7.  On 5 August 2002 the Commander of the Armed Forces and the applicant, who had the military rank of senior non-commissioned officer (vyriausiasis puskarininkis), concluded a five-year professional service contract. That contract was to come to an end on 5 August 2007. The contract also stipulated that in certain circumstances and in accordance with the rules provided for by the Law on Military Service (hereinafter – “LMS”, see paragraph 43 below), it could be rescinded even before that date (point 6 of the applicant’s contract).
8.  In 2003 the applicant graduated from the College of Management, Law and Languages of Šiauliai Region and obtained professional qualifications as a lawyer. These were higher-level non-university studies (aukštosios neuniversitetinės studijos).
9.  By order of the Commander of the Armed Forces of 18 April 2003 the applicant was assigned military code 42701 as a human resources specialist.
10.  On 16 August 2005 the applicant’s duties changed: he was transferred to the post of assistant on legal matters (vado padėjėjas teisės klausimais) to the Commanding Officer of the Grand Duke Vaidotas battalion.
11.  On 1 March 2006 the daily Kauno Diena published an article ‘War without constitutional rights’ (Karas be konstitucinių teisių), which was written after the applicant had approached the newspaper with criticism of the new Army Disciplinary Statute, adopted by the Lithuanian Seimas almost unanimously a couple of months previously. In the article the applicant argued that the new Disciplinary Statute restricted a serviceman’s defence rights when he was the subject of disciplinary proceedings. In particular, the Statute was vague on servicemen’s right to acquaint themselves with the substance of any internal investigation report against them. The applicant also claimed that during disciplinary proceedings a serviceman had only a limited opportunity to have recourse to legal representation, which in his view was particularly harmful, since few servicemen had the proper legal knowledge to defend themselves in person. The article further stated that the applicant, discontented with the new Statute, had conveyed his observations and suggestions to the President of the Republic, asking the latter to veto the Statute. According to Presidential office sources, the President took account of the applicant’s proposals but decided to promulgate the Statute anyway. The Chairman of the Committee of National Security of the Seimas commented that the Committee had received numerous suggestions in connection with the text of the Statute, all of which had been given serious consideration before the Statute was adopted.
12.  On 1 March 2006 the applicant’s superiors initiated an internal investigation into the applicant’s actions as regards his communication with journalists from the daily Kauno Diena and contact with the State President.
13.  On 13 March 2006 Kauno Diena published a new article, ‘Criticism of the Statute angers the Ministry [of Defence] (Statuto kritika užrūstino ministeriją)’. The article noted that the Ministry of Defence had initiated an internal investigation after the publication of the first article. It further quoted the applicant as stating that, disappointed with the Seimas for adopting the new Disciplinary Statute and with the State President for promulgating it, he had a right to show initiative as a citizen and, under the European Convention on Human Rights, to impart information and ideas unobstructed.
14.  The internal investigation into the actions of the applicant was terminated on 22 March 2006. It was established that the applicant had had prior permission from his superiors to address the State President. However, he had not obtained permission to contact the newspaper. The army investigator nevertheless considered that as cited in the article ‘War without constitutional rights’ the applicant had been expressing only his own personal opinion, and had not disseminated any official information. Consequently, Article 21 § 3 of LMS applied, pursuant to which soldiers had a right to express their opinions unless there was a conflict with their duties as soldiers or with military discipline. No disciplinary penalties were imposed on the applicant.
15.  On 11 May 2006 the applicant’s superiors concluded that the applicant had failed to perform his duties as a legal advisor, namely he had recommended the commanding officer of his battalion to grant childcare leave to another soldier, R.V., in breach of applicable legal norms. The army imposed upon the applicant a disciplinary penalty (drausminę nuobaudą), namely a reprimand (papeikimą).
On appeal against this penalty, on 25 April 2008 the Supreme Administrative Court held that the applicant had acted lawfully and that his recommendation that R.V. be granted childcare leave was lawful. The disciplinary penalty was quashed.
16.  On 19 June 2006 the applicant’s superiors signed an order dismissing him from the position of battalion commander’s assistant on legal matters with effect from 27 June 2006, on the basis of Article 45 § 4 of LMS. The order further stipulated that by 28 June 2006 documents discharging the applicant from the army should be prepared and submitted to the Minister of Defence.
17.  On 27 June 2006 the applicant was dismissed from the position of battalion commander’s legal advisor on the ground that he had reached retirement age, in accordance with Articles 38 § 1 (7) and 45 § 4 of LMS.
18.  On 3 July 2006 the Ministry of Defence issued a decision to terminate the applicant’s professional military service contract and to transfer him to the army reserve. The order was based on Articles 38 § 1 (7) and 45 § 4 (2) of LMS, whereby a serviceman of the applicant’s statutory rank had to be transferred to the reserve when he reached fifty years of age.
19.  On 22 July 2006 the applicant appealed to the Vilnius Regional Administrative Court, asking it to quash the decision of 3 July 2006 and to reinstate him into professional military service. The applicant also claimed that he had been discriminated against because he had defended another serviceman (see paragraph 15 above) and because of his views as expressed in the publication in Kauno Diena, in breach of Article 14 of the Convention. The applicant asserted that there were hundreds of soldiers in the Lithuanian army who did not have speciality codes allowing them to serve until 55 years of age. However, they continued to serve in the army until the expiry of their military service contracts, even though they had already reached retirement age. The applicant thus requested the court, on the basis of Article 57 § 4 of the Law on Administrative Proceedings (see paragraph 44 below), to oblige army officials to produce certain documents regarding his dismissal and regarding the situation of four servicemen, R.L., V.S., J.Š. and M.I., who to his knowledge had continued to serve in the military in the same Grand Duke Vaidotas battalion despite the fact that they had reached retirement age. He noted that those documents were in the custody of the battalion commander and he could not obtain them on his own. Lastly, the applicant acknowledged that in 2005 the Minister of Defence had changed the military specialist codes and he had been transferred to other duties, those of legal specialist. All officers with lawyer’s duties were given the code of legal specialist, but the applicant, a non-commissioned officer, had not been given a legal specialist code. This meant that at that time he had no legal specialist code at all.
20.  The administrative courts found that under the applicable legislation the applicant was obliged before he could bring a court action to exhaust other non-judicial remedies, namely to lodge an appeal with the Minister of Defence.
21.  The applicant then appealed to the Minister of Defence against his discharge from the army. On 28 August 2006 the Ministry of Defence held that the decision to discharge the applicant from the army was lawful, and dismissed his appeal.
22.  On 23 October 2006 the Vilnius Regional Administrative Court dismissed as unfounded the applicant’s complaints regarding the annulment of his professional military service contract and his discharge from the army. The court observed that under Articles 38 § 1 (7) and 45 § 4 (2) of LMS a serviceman must be discharged from the army once his military service contract expired or (arba) he reached retirement age, which in the applicant’s case was fifty years. The applicant had reached the age of fifty on 19 June 2006.
The court further noted that under Article 45 § 6 of LMS, soldiers who had been holding military specialist posts under the Minister of Defence’s decision of 13 June 2005 could be discharged on reaching 55 years of age. However, the applicant’s duties of a legal affairs assistant (vado padėjėjas teisės klausimais) to the commander of the Grand Duke Vaidotas battalion had not been included in the list approved by that decision. Accordingly, he could not rely on the age-related exception. In addition, in another case the Supreme Administrative Court had already held that reaching retirement age was the ground for discharge of a soldier from the military, notwithstanding whether or not his military service contract had expired yet (ruling of 12 March 2004 in case no. A2-262-04).
23.  The court further observed that Article 46 of LMS gave the Minister of Defence discretion to extend, in the interests of the military, the professional military service of a soldier who had reached the age when he or she should be discharged. However, this was a matter of discretion, and placed no obligation on the Minister.
The court did not address the applicant’s argument that four other servicemen of his unit had been allowed to continue military service despite having reached the age of discharge. Nor did it reply to the applicant’s request for the military service records of those four servicemen.
24.  In the meantime, the applicant also lodged a complaint with the Ombudsman, challenging his discharge from the army. On 2 November 2006 the Ombudsman refused to examine the complaint on the ground that an identical complaint was being examined by the administrative courts, and the law did not allow the Ombudsman to deal with such complaints.
25.  On 3 November 2006 the applicant appealed to the Supreme Administrative Court, reiterating his arguments of unlawful dismissal and discrimination. His appeal statement indicates that he reiterated his request that his superiors in the Grand Duke Vaidotas battalion be ordered to produce certain documents from the military service records of the four servicemen mentioned above, who he stated had continued serving in the same unit as the applicant despite having reached retirement age. The applicant asserted that discrimination would be easy to prove if the court would help him to obtain the military service records of those four servicemen.
26.  As regards the military specialist codes, he noted that in August 2002 he had been granted specialist code 0132 on the basis of the military code system established by the Minister of Defence in 1998, thus allowing him to serve until the age of 55. After the Minister of Defence amended the military code system in 2002 the applicant was given military specialist code 42701. When in 2005 the Minister of Defence again changed the system of military specialist codes and the applicant was transferred to the post of legal specialist, no specialist code was assigned to him. The applicant observed that officers who had legal posts had been given the code of legal specialist, but that he, as a non-commissioned officer, did not have such a code. Above all, “at present no specialist code at all had been granted to him” (šiuo metu iš viso man nėra suteiktas joks specialisto kodas).
Lastly, the applicant strongly asserted that the lower court had erred in interpreting and applying Article 38 and other provisions of LMS.
27.  By a decision of 22 May 2007 the Supreme Administrative Court dismissed the appeal. In setting out the reasons it observed that pursuant to Article 38 § 1 (7) of LMS, a serviceman had to be dismissed from military service once his contract had expired or he had reached the age of discharge, unless the duration of his military service had been extended. In the applicant’s case, as a non-commissioned officer, the age of discharge for him was 50. The court also emphasised that that legal norm was imperative, and applied to contracts which were still valid, and not to those which had already expired (teisės norma skirta reglamentuoti teisinius santykius dėl galiojančios, o ne pasibaigusios karo tarnybos sutarties nutraukimo). This interpretation also followed from Article 31 § 4 of LMS, which provided that a contract could be annulled ahead of time in cases provided for in Article 38 of that Law. Moreover, the possibility of the applicant’s military service contract being rescinded had also been mentioned in the contract itself (see paragraph 7 above). Taking into account the imperative nature of Article 38 § 1 (7), it was the army command’s duty, and not a right, to rescind a contract once the conditions mentioned in that provision had been met. Furthermore, Article 46 of LMS provided only discretion for and not an obligation on the Minister of Defence to extend a serviceman’s military service.
28. The Supreme Administrative Court also noted that according to his duties the applicant did not fall into the sphere regulated by Article 45 §§ 5 and 6 of the Law, that is he did not have military specialist status. Moreover, exceptional extension of term of service under Article 46 had not been applied to him. Consequently, the facts of the case fully matched the circumstances listed in Articles 38 § 1 (7) and 45 § 4 (2) of the Law. The first-instance court’s decision was thus fully upheld.
The appellate court did not address the applicant’s request for the supplementary documents to be obtained, nor did the court deal with the allegation of discrimination against the applicant because of his service status.
29.  In addition to the administrative proceedings concerning his discharge from military service, the applicant also instituted another set of somewhat linked proceedings concerning his dismissal from Vaidotas battalion, which formally preceded the discharge from military service. He reiterated the arguments expressed in the earlier proceedings. In relation to freedom of expression, the applicant merely mentioned that he had been persecuted for his opinions because of the legal decision he had issued which was favourable towards another serviceman (see paragraph 15 above). It also appears from the summary of the applicant’s complaints in the record of the court decision of 12 July 2007 (see the next paragraph), that this time the applicant had made no reference to the publication in Kauno Diena, but insisted that he had been discriminated against because of his social status as a non-commissioned officer vis-à-vis the commissioned officers.
30.  On 12 July 2007 the Vilnius Regional Administrative Court dismissed the applicant’s claim, fully upholding the reasoning that, in accordance with Articles 38 § 1 (7) and 45 § 4 (2) of LMS, the army was under an obligation to discharge him from the military because of his age.
31.  The court also noted that the qualifications required for a legal post had been established by the Minister of Defence on 13 June 2005. One of the obligatory requirements was university-level higher education in law (aukštasis universitetinis teisinis išsilavinimas). Accordingly, the applicant was not qualified to be appointed to a legal post, because in 2003 he had graduated from Šiauliai College of Law and Management, from the programme of higher-level non-university law studies (aukštųjų neuniversitetinių teisės studijų programa).
32.  As regards the alleged discrimination against non-commissioned officers vis-à-vis commissioned officers, the court observed that different requirements were applicable to soldiers of different ranks to reflect their experience and qualifications, as had been established in Article 52 § 1 of LMS. Similarly, by a ruling of 28 October 1992, no. 811, the Government had approved the Regulations on Military Service (Tarnybos statutas), point 11 of which established that all Lithuanian military officers are in command of soldiers and non-commissioned officers (visi karininkai yra kareivių ir puskarininkių ir liktinių viršininkai). Given that legal acts established different social status for officers and non-commissioned officers, the same requirements could not apply to both. The court thus held that the applicant’s argument that he had a right to serve until 55 years of age and was not to be discharged from the army was based only on his own ideas and erroneous interpretation of the law. Lastly, the court dismissed the applicant’s claim that he had been persecuted for his opinions, having concluded that that claim was based only on the applicant’s own suppositions and guesses.
33.  The applicant appealed, arguing that he had been persecuted because of his opinion on whether to grant childcare leave to another soldier. It appears from the transcript of the hearing of his complaints in the appellate court decision that the applicant did not mention the publication in the Kauno Diena newspaper.
34.  On 6 May 2008 the Supreme Administrative Court dismissed the appeal, noting that the applicant’s claim had already been decided in another administrative case, by a decision of 22 May 2007 (see paragraphs 27 and 28 above). The court confirmed that Article 38 § 1 (7) of LMS provided for two alternatives when a soldier had to be discharged from the army: when his contract expired or (emphasised by the appellate court) when he reached the age stipulated in Article 45 § 4 of that Law. Accordingly, once a serviceman reached the retirement age, the army had an obligation, and not a right, to discharge him. The court also noted that it was free to assess evidence to establish the circumstances of the case. However, the applicant had not provided any evidence confirming that he had been persecuted for the opinion he had given on the grant of childcare leave to another soldier.
35.  The applicant has been receiving a military pension since 4 July 2006.
36.  It appears from the parties’ explanations and the documents presented that the situation of the four servicemen whom the applicant had mentioned in his complaints of discrimination to the administrative courts (see paragraphs 19 and 25 above), was as follows.
37.  The five-year professional military service contract with 46-year-old junior sergeant (jaunesnysis seržantas) M.I. was signed (by extending a previous contract) on 16 January 2002. His military rank and the requirements of Article 45 § 4 (1) of LMS stipulate that the serviceman was to be discharged at the age of 40. However, from 2000 M.I. held a military specialist post as a weaponry specialist, which allowed him to serve until the age of 55 under Article 45 § 6 of that Law.
38.  The five-year professional military service contract with 49-year-old corporal (grandinis) J.Š. was signed (by extending a previous contract) on 16 January 2002. His military rank and the requirements of Article 45 § 4 (1) of the LMS stipulated that the serviceman was to be discharged at the age of 40. However, from 1999 J.Š. had a military specialist post as a motor repairman and electrician, which allowed him to serve until the age of 55. The contract with the serviceman was later extended until 8 June 2007, his 55th birthday. J.Š. was finally discharged from the army on 21 June 2007.
39.  The six-year professional military service contract with 38-year-old junior sergeant V.S. was signed (by extending a previous contract) on 25 December 2001. Her rank and the requirements of Article 45 § 4 (1) of LMS stipulated that she could serve until the age of 40. In addition, in 2000, 2003 and 2005 she was granted specialist status in accounting and human resources management.
40.  The five-year professional military service contract with 42-year-old corporal R.L. was signed (by extending a previous contract) on 16 January 2002. Her rank of corporal and the requirements of Article 45 § 4 (1) of LMS stipulated that she could serve until the age of 35. However, in 2000 she had been granted line specialist status (rikiuotės specialistė), which allowed her to serve until the age of 55. Moreover, in 2006 she had been promoted to the rank of senior sergeant, and thus could serve until the age of 50.
41.  The Government provided the Court with two additional examples where servicemen were discharged from professional military service on the ground of age while they still had valid contracts. They firstly noted senior navigator air force major V.Ž., born in 1951, whose contract was valid until October 2005. At the age of 52 he was honourably retired from the army in December 2003, on the basis of Articles 38 § 1 (7) and 45 § 4 (6) of LMS having reached the statutory age, which is 46 for a major. However, it appears from the documents before the Court that he was entitled to serve until the age of 55 because he was a senior navigator and thus a specialist, as provides Article 45 § 6 of LMS.
42.  The Government also referred to the case of senior lieutenant L.P., born in 1960. He had a five-year military service contract signed in March 2001. In accordance with Articles 38 § 1 (7) and 45 § 4 (4) of LMS, a person of L.P.’s military rank had to be discharged at the age of 40. However, in 1999 he had been granted specialist status, that of supply officer (aprūpinimo karininkas), and thus could serve until 55. In June 2002 L.P. had been transferred to a new post which was no longer included in the list of military specialists. L.P. was discharged on the basis of age in March 2003, when he was 43 years old.